[2025] UGCommC 60

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 0763 OF 2024 (ARISING FROM CIVIL SUIT NO. 1419 OF 2023)** 10 **MOHAMMED LWANGA :::::::::::::::::::::::: APPLICANT/1ST DEFENDANT VERSUS ZIWA RHINO AND WILDLIFE RANCH LTD :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT/PLAINTIFF**

# **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### 15 **RULING**

#### Introduction

This application was brought by way of Chamber Summons under **Section 33 of the Judicature Act (now Section 37 of Cap. 16), Sections 22(a) and 98 of the Civil Procedure Act, Cap. 282** and **Order 10 rules 12, 14,**

- 20 **15** and **24 of the Civil Procedure Rules SI 71-1** seeking orders that: - 1. The Respondent makes discovery on oath of the bank statements in the name of Ziwa Rhino and Wildlife Ranch Ltd with Stanbic Bank Uganda Limited, Kigumba branch of Account Numbers 9030020647395 and 9030021141118 and KCB Bank Uganda 25 Limited, Kampala Road of Account Number 2297416040 for Uganda Shillings from 1st March, 2022 to 31st March, 2023.

2. The Respondent makes a discovery on oath of the bank statement in the name of Ziwa Rhino and Wildlife Ranch Ltd with Stanbic Bank 30 Uganda Limited, Kigumba branch of Account Number

- 5 9030005598256 for United States Dollars from 1st March, 2022 to 31st March, 2023. - 3. The Respondent makes a discovery on oath of the annual payments relating to the grazing of the cows on the Respondent's property in Nakasongola from August/September, 2022 to August, 2023. - 10 4. The Respondent avails all the above mentioned documents for inspection. - 5. Costs for the application be provided for.

#### Background

The background of the application is detailed in the affidavit in support 15 deponed by **Mr. Mohammed Lwanga**, the Applicant, and is summarized below:

- 1. That there is a pending suit vide *Civil Suit No. 1419 of 2023* instituted by the Respondent against the Applicant and others, claiming that the Applicant stole UGX 79,680,000/= for grazing, - 20 USD 15,952, Euros 1,200 and UGX 135,821,700/= all belonging to the Respondent. - 2. That the Respondent conducted an audit concerning the Applicant/1st Defendant affairs using the documents mentioned in this application which is the basis of the Respondent's claim against 25 the Applicant. - 3. That the Applicant is seeking the bank statements of the Respondent mentioned in this application as they reflect the monies banked by the Applicant from 1st March, 2022 to 31st March, 2023 to the different bank accounts.

- 5 4. That the Respondent claims that the Applicant did not account for 1039 cattle that were paid for to graze in the Respondent's property in Nakasongola but yet the actual number is 994 cows. - 5. That the Applicant will utilize the documents sought to be discovered only in line with the main suit for purposes of resolution of the suit. - 10 6. That these documents are in the control and power of the Respondent and the Applicant can only access them through discovery and inspection.

In reply, **Captain Joseph Charles Roy** the Managing Director of the Respondent, deponed an affidavit and opposed the application contending 15 that:

- 1. The Respondent is not the author of all the bank statements which the Applicant seeks an order for discovery, and as such, is not in position to produce and/or authenticate the same because it is the wrong party. - 20 2. On 11th February, 2025 when the main suit came up for mention, Counsel for the Applicant was advised to withdraw this application and bring the same against Stanbic Bank Ltd, the rightful author of the statements. - 3. The bank statements are bank documents, which can only be 25 obtained by a Court order or otherwise.

In his affidavit in rejoinder, the Applicant reiterated his averments and further contended that:

1. As the account holder, the Respondent used the bank statements in issue in its audit report dated 25th May, 2023 and those are the bank 30 statements that the Applicant seeks.

- 5 2. The Applicant also seeks a report on all the cows that were brought into the ranch for grazing for the period between August, 2022 and August, 2023. - 3. When the audit report was released, the Applicant requested for the bank statements, delivery notes, accounts relating to the cows and - 10 all the information that was used in the audit report but the Respondent has refused to provide the same. - 4. This Court can order the Respondent to furnish the Applicant with the bank statements and annual payments sought in this application. - 15 Representation

The Applicant was represented by **M/s Imperium Advocates** while the Respondent was represented by **M/s Omongole & Co. Advocates**.

Both parties were directed to file their written submissions which they did and the same have been considered by the Court.

- 20 Issues for Determination - 1. Whether the Court should grant an order for discovery of the documents? - 2. What remedies are available to the parties?

Issue No. 1: Whether the Court should grant an order for discovery of the 25 documents?

## Applicant's submissions

Counsel for the Applicant first relied on **Section 22(a) of the Civil Procedure Act** and **Order 10 rules 12(1) and 14 of the Civil Procedure**

- 5 **Rules** upon which this application is premised as well as the case of *Patricia Mutesi Vs Attorney General HCMA No. 912 of 2016* for the definition of the term discovery. Counsel for the Applicant further relied on the case of *A. K. T Project Management Ltd and 2 Others Vs DFCU Bank Limited HCMA No. 2046 of 2023* in which this Court cited the - 10 case of *Simbamanyo Estates Ltd and Peter Kamya Vs Equity Bank Uganda Ltd and 4 Others HCMA No. 582 of 2022* for the prerequisites needed for an order of discovery to be made.

Regarding the relevance and materiality of the documents sought for discovery; Counsel for the Applicant submitted that the Applicant states 15 under paragraphs 2, 3, 7 and 8 of the affidavit in support that he banked the money on the Respondent's bank accounts which bank accounts were referred to in the audit report that was carried out by the Respondent through their Auditors, Joseph Richards & Associates. That the accounts in respect of the cows that were paid for to graze on the Respondent's 20 property at Nakasongola, as stated in paragraph 9 of the affidavit, was information relied upon by the Respondent as reflected on page 10 of the audit report, which has no supporting documents to that effect.

On whether the documents sought are otherwise privileged and whether they are in the possession, custody or power of the Respondent; Counsel

25 submitted that the documents being sought are not privileged or protected by law and that the Respondent is in possession and custody of the same since they were used in their audit report dated 25th May, 2023.

Regarding the Respondent's contention that the Applicant should sue Stanbic Bank Uganda Limited instead; Counsel contended that the 30 Respondent utilized the said bank statements for purposes of carrying out the forensic audit.

### 5 Respondent's submissions

Counsel for the Respondent first relied on **Order 10 rule 12(1) of the Civil Procedure Rules** and then conceded to the fact that the bank statements being sought by the Applicant are relevant to the determination of the main suit. That however, it is only the bank that can issue and certify the same

10 and therefore, the Applicant ought to have sued the bank and not the Respondent.

That for the annual payments relating to the cows; the same do not exist since the Applicant was the one in charge of documenting the same but did not and as such, they cannot be produced. That even though such a 15 document existed, it would be immaterial to the suit.

Counsel further submitted that the Respondent's claims against the Applicant in the main suit do not in any way make reference to the accounts the Applicant seeks to acquire from the Respondent. That therefore, the Applicant has failed to prove the prerequisites needed for

20 grant of the orders sought and thus the application should be dismissed with costs to the Respondent.

#### Analysis and Determination

I have carefully considered this application, the affidavit in reply and rejoinder, evidence and the submissions by both Counsel, to find as 25 herein.

**Section 22(a) of the Civil Procedure Act** provides that:

- 5 *"Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party-* - *(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of any* 10 *interrogatories, the admission of documents and facts and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence."*

#### **Order 10 rule 14 of the Civil Procedure Rules** also provides that:

15 *"The Court may, at any time during the pendency of any suit, order the production by any party to the suit, upon oath, of such of the documents in his or her possession or power, relating to any matter in question in the suit, as the Court shall think right; and the Court may deal with the documents, when produced, in such manner as* 20 *shall appear just."*

It is trite that discovery must not be allowed to be used as a fishing expedition for the Applicant to build up an unsure case. (See: *John Kato Vs Muhlbauer A. G and Another HCMA No. 175 of 2011)*. In the matter at hand, the Applicant seeks an order for discovery and inspection on oath 25 of the Respondent's bank statements of its; Uganda Shillings Accounts Number 9030020647395 and 9030021141118 with Stanbic Bank Uganda Limited, Kigumba Branch and Uganda Shillings Account Number 2297416040 with KCB Bank Uganda Limited, Kampala Road as well as United States Dollars Account Number 9030005598256 with Stanbic Bank Uganda Limited, Kigumba branch from 1st March, 2022 to 31st 30 5 March, 2023. The Applicant also seeks to discover and inspect on oath, the annual payments made relating to the grazing of cows in the Respondent's property at Nakasongola from August, 2022 to August, 2023. The prerequisites for grant of an order for discovery were articulated in the case of *Simbamanyo Estates Ltd and Peter Kamya Vs Equity*

10 *Uganda Ltd & 4 Others (supra)* to include:

- 1) Relevance and materiality - 2) Not otherwise privileged or protected by law - 3) The document is in the Respondent's possession, custody, control or power; and - 15 4) Attempts to obtain the same voluntarily were futile. - i) Relevance and materiality

In the case of *Kaweesi Sulaiman and 26 Others Vs Bank of Uganda and another HCMA No. 258 of 2022,* **Hon. Justice Stephen Mubiru** 20 held that:

*"A document is "material" if it is being offered to prove an element of a claim or defence that needs to be established for one side or the other to prevail. The Applicant must show a reasonable expectation that the material sought will aid in the resolution of the* 25 *suit."*

What I glean from the authorities above is that in determining relevance, there has to be a reference to the pleadings to find that the head action is one that is maintainable at law or is at least arguable, that the application shall lead to discovery of admissible evidence and that for the document 30 to be material, it must be offered to prove an element of a claim or defence that needs to be established for one side or the other to prevail.

- 5 Turning to the pleadings, the Respondent filed *Civil Suit No. 1419 of 2023* against the Applicant (1st Defendant) and others claiming **UGX 79,680,000/=** fraudulently taken and converted by the 1st Defendant/Applicant meant for payment of pastoralists for the grazing period for the year 2022; **USD 15,952** and **Euros 1,200** received by the - 10 Applicant/1st Defendant from the 2nd Defendant as an Accountant and the 3rd Defendant as the Cashier of the Respondent/Plaintiff all to be banked in the USD account of the Respondent/Plaintiff in Stanbic Bank Uganda Ltd but converted by the Applicant/1st Defendant; and **UGX 135,821,700/=** received by the Applicant/1st Defendant from the 2nd and 15 3rd Defendants being money of the Respondent/Plaintiff to be banked in the Plaintiff's Uganda Shillings bank accounts with Stanbic Bank Uganda Ltd and KCB Bank Uganda Limited but converted by the Applicant/1st

Defendant, among other claims.

In his written statement of defence and counterclaim, the Applicant/1st 20 Defendant denied the Respondent's/Plaintiff's claim and contended that while he was a director in the Respondent Company from 4th May, 2007, he duly banked or put to use for purposes of the Company and not for personal use all the money received on behalf of the Respondent/Plaintiff from the 2nd and 3rd Defendants. Under paragraph 5(a) of the written 25 statement of defence, the Applicant/1st Defendant contended that he duly banked all the money on the three accounts of the Respondent/Plaintiff including accounts in Stanbic Bank Uganda Limited, Kigumba branch vide Account Nos. 9030005598256, 9030020647395 and 9030021141118 and in an account with KCB Bank Uganda Limited, Kampala Road branch 30 Account Number 2297416040.

5 Under paragraph 6(c) of the plaint, the Respondent /Plaintiff attributed its claims from the findings of the forensic audit report attached to the affidavit in support marked as annexure "**A"** and pleaded that the Defendants jointly and severally using their positions as Director, Accountant and Cashier respectively, defrauded the Respondent/Plaintiff 10 of huge sums of money, among others. I have perused the forensic audit report dated 25th May, 2023 attached to the affidavit in support of the application, marked as annexure **"A"** that was attached to the plaint in *Civil Suit No. 1419 of 2023*. At pages 10, 11, 17, 18 and appendices I and II, the Auditor makes reference/narratives regarding the funds that 15 were deposited on the dollar account in Stanbic Bank Uganda Ltd and Uganda Shillings accounts in Stanbic Bank Uganda Limited and KCB Bank Uganda Limited from March, 2022 to March, 2023. Considering the Respondent's submissions that they do not dispute the relevancy of the said bank statements, then the bank statements in issue are relevant and 20 material to the main suit.

For the annual payments relating to the grazing of the cows on the Respondent's premises; Counsel for the Respondent submitted that the same cannot be produced since, it was the Applicant that was in charge of documenting them, but did not. The Applicant requested the said 25 payments on the basis that they were relied on in the audit report, annexure **"A"**. However, upon thorough perusal of annexure **"A"**, I have observed that the annual payments are not referred to anywhere in the report and that the Auditor did not rely on any documented sources for these payments but rather the Applicant's statements in an interview that 30 was conducted on the Respondent's premises on 5th May, 2023. In light of the above, I do not find any evidence of the existence of annual payments and therefore Court cannot order for production of the same for inspection.

5 ii) Not otherwise privileged or protected by law

In the case of *Kaweesi Sulaiman and 26 Others Vs Bank of Uganda and another (supra),* **Hon. Justice Stephen Mubiru** while citing **Order 10 rule 19(2) of the Civil Procedure Rules** observed that:

*"Any party who seeks to exclude documents from discovery on the* 10 *basis of exemption or immunity must specifically plead the particular privilege or immunity claimed and provide evidence supporting such claim."*

In the instant case, the Respondent did not raise any issue to show that the bank statements sought to be discovered and inspected are privileged 15 or otherwise protected by the law.

iii) The documents are in the Respondent's possession, custody, control or power

Regarding the annual payments; as earlier stated, no satisfactory evidence has been adduced to show that the same are in the Respondent's 20 possession, custody, control or power and therefore, no order of production can be made to that effect. For the bank statements; the Applicant averred that the bank statements are in the possession, custody and power of the Respondent.

On the other hand, the Respondent contended that it is not the author of 25 the bank statements sought and as such, the Respondent is not in position to produce and/or authenticate the same.

According to the plaint in *Civil Suit No. 1419 of 2023*, the Respondent relied on annexure "**A"** to premise its claims against the Applicant. The

- 5 audit report indisputably referenced an analysis of the bank statements in issue, as source documents. The Applicant avers that the source documents, as mentioned in his written statement of defence, are necessary to disprove the Respondent's claims. - In my view, since the audit report forms part of the annexures to the plaint, 10 all the documents therein form part of the plaint and thus, must be disclosed. Therefore, it is my finding that the copies of the bank statements sought to be discovered are in the possession, custody and power of the Respondent. - iv) Attempts to obtain the same voluntarily were futile - 15 In the case of *Simbamanyo Estates Ltd and Peter Kamya Vs Equity Bank Uganda Limited and 4 Others (supra),* **Hon. Justice Stephen Mubiru** observed that:

*"Parties must first confer in a good faith effort to resolve any disputes related to pre-trial discovery. Upon failure to obtain* 20 *voluntary cooperation, discovery may then be sought by a written motion directed to the Court."*

In rejoinder under paragraph 11, the Applicant deponed that since 25th May, 2023, when the audit report was released, he has continued to request the bank statements and all other information used in the audit 25 report, which the Respondent has refused to provide. This averment is not contested by the Respondent.

Therefore, I find that the Applicant's attempts at voluntary cooperation were futile, necessitating this application.

5 Issue No.2: What remedies are available to the parties?

In the premises, I find the application meritorious and is hereby allowed with the following orders:

- 1. The Respondent is to furnish under oath of an appropriate officer within fourteen (14) days of this Order, for inspection and taking 10 copies of; - a) Bank statements in the name of Ziwa Rhino and Wildlife Ranch Ltd with Stanbic Bank Uganda Limited, Kigumba branch, Uganda Shillings Account Numbers 9030020647395 and 9030021141118 and KCB Bank 15 Uganda Limited, Kampala Road Uganda Shillings Account Number 2297416040 for the period 1st March, 2022 to 31st March, 2023 and; - b) Bank statement in the name of Ziwa Rhino and Wildlife Ranch Ltd with Stanbic Bank Uganda Limited, Kigumba 20 branch, United States Dollars Account Number 9030005598256 for the period 1st March, 2022 to 31st March, 2023; - 2. Costs of this application shall be in the cause.

25 I so order.

Dated, signed and delivered electronically via ECCMIS this **20th** day of

**March, 2025**.

Patience T. E. Rubagumya

30 **JUDGE** 20/03/2025